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Post-Conviction Proceedings

A judgment of conviction may seem like the end of a criminal case, but there are several post-conviction proceedings that could shorten or even eliminate a sentence. Sometimes defendants are left to their own devices for these proceedings, as the constitutional right to counsel applies to some, but not all proceedings after a conviction. Read on to learn about the different types of post-conviction proceedings and which ones entitle a defendant to an attorney.

Post-Conviction Proceedings: When a Defendant Is Entitled to an Attorney

A defendant is entitled to court-appointed counsel for proceedings that affect their fundamental rights. Proceedings that affect a defendant's constitutional rights include:

  • Sentencing: In general, sentencing is the procedure in which the court decides what a defendant's punishment should be. This is a "critical stage" of the prosecution, so the defendant is entitled to a defense attorney at state expense.
  • The First Appeal of Right: Some states give criminal defendants the right to an appeal when a judge rules against them on certain motions during trial. In these states, a defendant is entitled to have an attorney on the appeal.
  • Review of the Effectiveness of Defense Counsel: The Sixth Amendment gives criminal defendants the right to a competent attorney. If a defendant claims his attorney was not competent or effective, a different attorney will be appointed to help them with the review.

An appellate attorney reviews the transcripts of these proceedings to ensure that counsel objected when necessary, put forward necessary evidence, and otherwise did everything reasonably possible to secure an acquittal or a favorable plea agreement. The appellate attorney should also check that the judge did not make material legal errors or abuse their discretion.

Post-Conviction Proceedings: When a Defendant Is Not Entitled to an Attorney

There are post-conviction proceedings that are not considered critical stages of the criminal case. As such, these types of proceedings don't entitle a defendant to an attorney at the state's expense. Attorneys can still be retained at the expense of the defendant for these steps, or legal assistance might be available through a nonprofit or pro bono legal aid organization. Proceedings that do not necessitate counsel include:

  • Discretionary Appeals and Petitions for the Supreme Court: Defendants in states that do not recognize the right to an appeal may still seek to have their case reviewed for errors. However, defendants usually must hire their own attorneys for such appeals.
  • Habeas Corpus Proceedings: A petition for habeas corpus is a claim that the reason for incarceration is unconstitutional. For this proceeding, a prisoner must hire their own attorney or represent themselves.
  • Parole Hearings: In parole hearings, a panel of judges or other government appointees may decide to let a prisoner out on parole, revoke parole, or shorten parole. Prisoners may have an attorney present, but they are not guaranteed one.
  • Clemency, Pardon, or Commutation Proceedings: These proceedings can allow a convicted person's sentence to be shortened or even erased entirely, but they carry no right to counsel because they are executive processes and not judicial processes.
  • Expungement: In expungement proceedings, a convicted person who served a sentence can get their record erased and civil rights restored. Convicts are not entitled to an attorney when pursuing expungement.

An experienced criminal defense attorney can review the transcripts of these proceedings to ensure the defendant's rights were protected, especially in regard to key issues like the admission of false confessions or inauthentic evidence.

Get Legal Help With Your Post-Conviction Proceedings

As you can see, you may not be entitled to an attorney for certain post-conviction proceedings. However, that just applies to a court-appointed attorney. You still have the option to consult with a well-qualified criminal defense attorney near you for help with any post-conviction proceedings.

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